Judgment:
J.R. Midha, J.
1. The appellants have challenged the award of learned Tribunal whereby compensation of Rs. 10,00,000 with interest at the rate of 6 per cent per annum has been awarded to claimants-respondent Nos. 1 to 5.
2. The accident dated 27.1.1986 resulted in the death of Major Surenderjit Singh Ghuman. On 27.1.1986 at about 6.45 p.m., the deceased was driving his two-wheeler scooter bearing No. CHH 8818 near Army Headquarters, Delhi Cantt. when he was hit by Army Matador No. DEP 7980 resulting in grievous injuries. The deceased was removed to the Army Hospital, Delhi Cantt. and was admitted in ICU where he expired on 5.2.1986.
3. The deceased was survived by his widow, two minor children and parents who filed the claim petition before the learned Tribunal.
4. The deceased was 38 years old at the time of the accident. He had completed NDA and, thereafter, IMA (Indian Military Academy), Dehradun and was commissioned on 21.12.1969. The deceased was earning Rs. 4,000 per month apart from having facilities of free ration, medical facilities, free education for children and canteen facilities at the time of the accident. Considering the future prospects of the deceased, the learned Tribunal took the income of the deceased as Rs. 8,000 per month. One-third was deducted towards the personal expenses of the deceased and the multiplier of 16 was applied to compute the loss of dependency at Rs. 10,24,000. Rs. 10,000 has been awarded towards loss to estate, loss of consortium and funeral expenses and the total compensation computed is Rs. 10,34,000. The amount was reduced by Rs. 34,000 as the claimants had claimed only Rs. 10,00,000. The learned Tribunal awarded interest at the rate of 6 per cent per annum on the award amount.
5. The appellant has challenged the impugned award on the ground that the accident occurred due to negligence of the deceased who was under the influence of liquor at the time of accident and, therefore, the appellant is not liable to pay any compensation whatsoever.
6. Claimants produced the eyewitness, PW 6, Narender Kumar before the learned Tribunal who deposed that the accident occurred due to rash and negligent driving of Army Matador. PW 6 deposed that the scooter was on the left side of the road and Matador came in the centre of the road and hit the scooter and the speed of scooter at that time was 30 to 35 kmph whereas the speed of Matador was about 70 kmph.
7. The appellants produced 3 witnesses, RW 1, RW 2 and RW 3. RW 3 is the driver of the Army vehicle who deposed that he saw a cow crossing the road due to which he slowed down the vehicle and allowed the cow to cross when the scooter came from the opposite side and dashed into the Army vehicle. RW 3 also deposed that the deceased was smelling of alcohol and was negligently driving. RW 1 was sitting in the Army vehicle along with the driver and he also deposed to the same effect. The appellants also produced the doctor, RW 2 who examined the deceased in the Army Hospital and deposed that the deceased was smelling of alcohol. However, RW 2 admitted that he did not conduct any test to determine the presence of alcohol and the smell could have been on account of alcoholic medicines at Base Hospital.
8. The departmental inquiry was conducted by the military authorities where RW 1 and RW 3 appeared but did not make any statement that the deceased was under the influence of liquor. The army authorities recorded a finding in the inquiry report that the deceased was neither under the influence of liquor nor mentally disturbed at the time of the accident.
9. The learned Tribunal has considered the entire evidence of the parties in detail in the impugned award to arrive at the finding that the accident occurred due to rash and negligent driving of the Army vehicle. There is no infirmity in the finding of the learned Tribunal with respect to rash and negligent driving of the Army vehicle which is proved by the testimony of the independent eyewitness, PW 6 who deposed that the deceased was driving on the left side of the road and Matador came on the centre of the road to hit the scooter of the deceased. Even RW 1 and RW 3 have also admitted the accident but the explanation that a cow came on the road was not proved. The finding of rash and negligent driving of the Army vehicle is, therefore, upheld.
10. The claimants-respondents have filed cross-objections to claim enhancement of the award amount. The learned Counsel for claimants seek enhancement on the following grounds:
(i) The deceased has left behind five legal representatives, namely, widow, two minor children and parents who were dependent upon him and, therefore, the personal expenses of the deceased should be deducted as 1/5th instead of 73rd.
(ii) No compensation has been awarded for loss of love and affection.
(iii) Compensation for loss to the estate and loss of consortium be enhanced.
(iv) The deduction of Rs. 34,000 from the amount computed by the learned Tribunal on the ground that the claimants have claimed only Rs. 10,00,000 is unjustified.
(v) The rate of interest at 6 per cent per annum be enhanced.
11. With respect to the deduction of personal expenses, it has been settled by the Hon'ble Supreme Court in the case of Sarla Verma v. Delhi Transport Corporation : 2009 ACJ 1298 (SC), that where the deceased left behind four to six dependent family members, 1/4th should be deducted towards the personal expenses. The deduction of personal expenses of the deceased is, therefore, reduced from 1/3rd to 1/4th.
12. Learned Tribunal has not awarded any compensation for loss of love and affection. The compensation of Rs. 10,000 is awarded to each of the claimants for loss of love and affection. Learned Tribunal has awarded Rs. 10,000 for loss to estate, loss of consortium and funeral expenses. The compensation under these heads is enhanced to Rs. 25,000 (Rs. 10,000 for loss to estate, Rs. 10,000 for loss of consortium and Rs. 5,000 for funeral expenses).
13. The learned Tribunal has computed the compensation payable to the deceased to be Rs. 10,34,000. However, the learned Tribunal deducted Rs. 34,000 on the ground that the claimants claimed Rs. 10,00,000 in the claim petition. The finding of the learned Tribunal is contrary to the judgment in the case of Nagappa v. Gurudayal Singh : 2003 ACJ 12 (SC), where it has been held that claimants are entitled to just compensation and they can be awarded higher compensation than the compensation claimed in the petition. The deduction of Rs. 34,000 by the learned Tribunal in the award is, therefore, unjustified.
14. The learned Tribunal has awarded interest at the rate of 6 per cent per annum which is considerably low considering that prior to 2001, the bank interest rate was 12 per cent per annum. Thereafter, the Hon'ble Supreme Court in the case of Kaushnuma Begum v. New India Assurance Co. Ltd. : 2001 ACJ 428 (SC), held that in view of the prevailing bank interest rates, interest at the rate of 9 per cent should be awarded. In the case of Dharampal v. U.P. State Road Transport Corporation : 2008 ACJ 2041 (SC), the Hon'ble Supreme Court has awarded interest at the rate of 7.5 per cent per annum. Considering the bank rate of interest, the rate of interest on the award amount is enhanced from 6 per cent per annum to 12 per cent per annum from the date of filing of claim petition till date of the award, i.e., 18.8.2000 and thereafter at the rate of 7.5 per cent per annum up to the date of payment.
15. In view of the above, the appeal is dismissed and the cross-objections are allowed. The award amount is enhanced from Rs. 10,00,000 to Rs. 12,27,000, i.e., [(Rs. 8,000 - Rs. 2,000) x 12 x 16 + Rs. 10,000 + Rs. 10,000 + Rs. 10,000 + Rs. 10,000 + Rs. 10,000 + Rs. 25,000J along with interest at the rate of 12 per cent per annum from the date of filing of the petition up to 18.8.2000 and thereafter at the rate of 7.5 per cent per annum.
16. Appellant has deposited 50 per cent of the award amount with the Registrar General of this Court in terms of the order dated 17.1.2001 out of which Rs. 2,50,000 has been received by the claimants and the balance amount is lying in the fixed deposit in terms of the order dated 9.3.2009.
17. The Registrar General is directed to transfer/remit the entire award amount along with up-to-date interest to the learned Tribunal within a period of two weeks. The appellant is directed to deposit the remaining award amount along with up-to-date interest with the learned Tribunal within 30 days.
18. The shares of the claimants in the award amount shall be as under:
Claimant-respondent 60 per cent No. 1 Claimants-respondent 10 per cent Nos. 2 to 5 each
19. The learned Tribunal is directed to release 10 per cent of the enhanced award amount along with interest to the claimant No. 1 and 5 per cent of the enhanced award amount along with interest to each of claimant-respondent Nos. 2 to 5 and their remaining share be kept in the fixed deposit for a period of five years on which periodical interest be paid to them but no loan or advance be permitted without the permission of the learned Tribunal.
20. The copy of the order be given dasti to learned Counsel for the parties under signature of Court Master.